CHURCHILL V ARAL HC AK CIV 2001-404-2302

CHURCHILL V ARAL HC AK CIV 2001-404-2302

The plaintiffs were held to be "not appearing" for the purposes of R 485 because following the adjudication in bankruptcy of the sole director they had no directors in office, no instructing solicitors, and counsel sought and was granted leave to withdraw, with shareholders unlikely to act; accordingly the jurisdictional requirements of R 485 were satisfied and judgment was entered for the defendants against the plaintiffs, subject to the usual availability of relief under R 486.

Citation
openlaw-027fab3b_f103_4849_a6e9_52d9f88f6444.pdf
Parties
First Plaintiff: Churchill Group Holdings Ltd; Second Plaintiff: Cachinal Investments Ltd; Third Plaintiff: Matam Investments Ltd; Fourth Plaintiff: Cleveland Investments Ltd; First Defendant: Aral Property Holdings Ltd; Second Defendant: David Leung
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 December 2006
Procedural Posture
Civil Proceeding (commercial Dispute) / Substantive Hearing (day 31); Application Under High Court Rule 485 for Judgment by Default and Counsel's Application to Withdraw Pending
Outcome
Judgment for both defendants on both causes of action against all four plaintiffs under High Court Rule 485
Legal Topics
High Court Rule 485 Judgment by Default, Leave to Withdraw Counsel, Directorship Disqualification on Bankruptcy, Adjudication in Bankruptcy/annulment, Non Party Discovery
Civil Procedure Company Law Bankruptcy Law Evidence Disclosure/discovery High Court Rule 485 Judgment by Default Leave to Withdraw Counsel Directorship Disqualification on Bankruptcy +2 more

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Parties

Churchill Group Holdings Ltd

First Plaintiff

Cachinal Investments Ltd

Second Plaintiff

Matam Investments Ltd

Third Plaintiff

Cleveland Investments Ltd

Fourth Plaintiff

Aral Property Holdings Ltd

First Defendant

David Leung

Second Defendant

Procedural Posture

Civil Proceeding (commercial Dispute) / Substantive Hearing (day 31); Application Under High Court Rule 485 for Judgment by Default and Counsel's Application to Withdraw Pending

Legal Issues

  1. 1 Whether plaintiffs "do not appear" within R 485 given adjudication in bankruptcy of sole director and withdrawal of counsel
  2. 2 Whether absence of directors and instructing solicitors means the claim is abandoned or cannot continue
  3. 3 Effect of Companies Act disqualification on plaintiff companies' capacity to prosecute claim

Ratio Decidendi

The plaintiffs were held to be "not appearing" for the purposes of R 485 because following the adjudication in bankruptcy of the sole director they had no directors in office, no instructing solicitors, and counsel sought and was granted leave to withdraw, with shareholders unlikely to act; accordingly the jurisdictional requirements of R 485 were satisfied and judgment was entered for the defendants against the plaintiffs, subject to the usual availability of relief under R 486.

Court Disposition

Judgment for both defendants on both causes of action against all four plaintiffs under High Court Rule 485

Orders

  • Leave granted for Mr G J Judd QC to withdraw as counsel for the plaintiffs
  • Judgment entered for both defendants on both causes of action against Churchill Group Holdings Ltd, Cachinal Investments Ltd, Matam Investments Ltd and Cleveland Investments Ltd under R 485